news FARGO -- An advertising agency here is suing two North Dakota natives for allegedly stealing one of its characters and turning it into a popular YouTube and Cartoon Network series "The Annoying Orange."
The lawsuit filed Monday in U.S.
Dickinson, 58602

Dickinson North Dakota 1815 1st Street West 58602

2013-10-24 20:31:39

FARGO -- An advertising agency here is suing two North Dakota natives for allegedly stealing one of its characters and turning it into a popular YouTube and Cartoon Network series "The Annoying Orange."

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The lawsuit filed Monday in U.S. District Court here alleges Dane Boedigheimer and Spencer Grove took the idea for the character from H2M Inc.'s "The Talking Orange," created for several television commercials that aired in North Dakota and western Minnesota from 2005 to 2009 for a North Dakota Department of Transportation advertising campaign.

According to the civil complaint, both men were raised in the area, studied filmmaking at Minnesota State University Moorhead and worked in the region. Boedigheimer created the character, while Grove helped write the scripts.

Boedigheimer told The Forum in November 2011 he had never seen the "Talking Orange" commercials before he was first told about H2M's concerns that year, and said he believed the characters weren't very similar.

"They perceive it one way, and I disagree," Boedigheimer said at the time.

He moved to California in 2004 after graduating from MSUM in 2003, before the H2M commercials began to air.

The lawsuit also names as defendants Annoying Orange LLC and Annoying Orange Inc., the respective owners of the trademark and copyright for the character. Both are based in California, with Boedigheimer serving as principle and executive officer.

Boedigheimer didn't respond to a message left on his cellphone Tuesday.

H2M attorney Jeff Landa said Tuesday their investigation showed Boedigheimer and Grove returned to the Fargo area several times after moving to California to visit family -- and maintained strong ties to the region as the 10 "Talking Orange" commercials were aired here.

"They picked up, moved to California and started another version of it," Landa said. "That's essentially what our case is about."

Boedigheimer posted several "Annoying Orange" videos on YouTube beginning in 2009, racking up more than 1.2 billion views and eventually launching a line of T-shirts, toys and a video game. The character became the star of "The High Fructose Adventures of Annoying Orange," which first aired on Cartoon Network in May 2012 and began its second season last week.

H2M's lawsuit claims the cartoon character is "substantially similar" to "The Talking Orange" -- both are "anthropomorphic" characters made up by an inanimate orange with a superimposed human mouth and a "snotty, annoying and obnoxious" voice.

The lawsuit also claims the first episode of "The Annoying Orange" had a similar plot to an H2M's commercial, both featuring "an interaction with an anthropomorphic apple which is threatened with being sliced and eaten."

The lawsuit alleges the two were made with a similar special effects process known as compositing, with a recording of an actor's mouth speaking the script placed over video footage of an actual orange.

"In short, the Defendants did nothing more than add eyes and exaggerate the same personality traits inherent in 'The Talking Orange,'" the complaint asserts.

Landa said the lawsuit isn't meant to "ruin" the defendants or end the show. Instead, it seeks an award of damages based on the profits made with this character.

"We're just trying to get what we believe is legally H2M's," he said.

The financial award sought remains unknown, he said. The lawsuit requests a full accounting of all profits to determine how much is at stake and seeks an injunction to prohibit the defendants from any future unauthorized use.

Landa said the defendants will have to respond, either with their answer to the complaint or with a motion to dismiss the case, within 20 days after they're served with a summons.